[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 12930
Non

- Argument Calendar

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UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus JONATHAN JERMAINE THOMAS, a.k.a. Webbie, a.k.a. JT,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 1 of 72 Opinion of the Court 22

- 12930

D.C. Docket No. 5:21

- cr

- 00033

- JA

- PRL

- 1

____________________ Before J ILL P RYOR , N EWSOM , and B RANCH , Circuit Judges.
PER CURIAM:Jonathan Jermaine Thomas appeals his convictions for conspiracy to possess with the intent to distribute controlled substances, possession of a firearm in furtherance of a drug

- trafficking conspiracy , and possession with intent to distribute 400 grams or more of a substance containing fentanyl. On appeal, he raises three arguments . First, he asserts that the district court erred by instructing the jury on the alternative charge of aiding and abettin g the possession of a firearm in furtherance of a drug

- trafficking conspiracy . Second, he contends that the district court plainly erred by determining that the government’s closing remarks did not violate his right to a fair trial . Third, he argues that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug

- trafficking conspiracy. After careful review, we affirm. The facts are known to the parties, and we repeat them here only as necessary to decide the case.

I. Thomas first challenges the jury instructions on his charge of aiding and abetting the possession of a firearm in furtherance of a drug

- trafficking conspiracy. In particular, he argues that the district court should never have instructed on that charge because USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 2 of 722

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prosecutors ( 1) failed to list the aiding and abetting charge in his superseding indictment and ( 2) did not mention the charge at trial.

We review the legal correctness of a jury instruction de

novo and review questions of phrasing for abuse of discretion. United States v. Prather , 205 F.3d 1265, 1270 (11th Cir. 2000). We will reverse the conviction on such grounds only if the district court presented the issues of law inaccurately or improperly guided the jury in a significant matter that violate d the defendant’s due process rights. Id. Aiding and abetting is a means of holding a defendant guilty as a principal on the ground that he assisted someone else in the commission of an offense

. United State s v. Martin , 747 F.2d 1404, 1407 (11th Cir. 1984). To be clear, though, it is not a separate crime

— only a separate ground of liability

. Id. The main aiding and abetting statute under federal law is 18 U.S.C. § 2 . That statute provides that an individua l may be punished as a principal if he “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission
, ” or “willfullycauses an act to be done which if directly performed by him or another would be an o ffense against the United States .” Id. § 2 (a)

– (b). Under our case law, the government does not need to specifically allege aiding and abetting in the indictment for the district court to instruct the jury on the charge

. Martin , 747 F.2d at 1407. Applying these straightforward legal principles
, we conclude that Thomas’s challenge to the aiding and abetting jury instruction fails

. E ven though the government did not specifically charge USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 3 of 74 Opinion of the Court 22

- 12930 Thomas with aiding and abetting, our case law is clear: A n aiding and abetting instruction is allowed even when the government does not indict on that particular count. Id. 1
II. Thomas next argues that prosecutors called him an “idiot” during their closing argument and thus violated his righ t to a fair trial

. Typically, we review de novo a claim of prosecutorial misconduct during closing argument s

. United States v. House , 684 F.3d 1173, 1197 (11th Cir. 2012). When a defendant fail s to object at trial, though
, we review the statements for plain error. United States v. Mueller , 74 F.3d 1152, 1157 (11th Cir. 1996). To show plain error, the defendant must show that ( 1) there was an error, ( 2) that is plain, ( 3) the error affected the defendant’s substantial rights, and ( 4) it “ seriously affect ed the fairness, integrity, or public reputation of judicial proceedings.” United States v. Madden , 733 F.3d 1314, 1320 (11th Cir. 2013) (quotation marks omitted). During their closing argument, it is improper for prosecutors to exceed the evidence presented at trial. United States v. Reeves , 742 F.3d 487, 505 (1 1th Cir. 2014). That said, they may state conclusions drawn from the trial evidence and fairly respond to defense counsel’s arguments. Id. Closing arguments prejud ice a defendant’s substantial right when “a reasonable probability arises that, but for the [improper]

1 It is worth noting that the superseding indictment did, in fact, list 18 U.S.C. § 2 among the statutes violated. This fact further demonstrates that Thomas had adequate notice of the charges against him and that the jury instructions were not improper. USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 4 of 722

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remarks, the outcome of the trial would have been differ ent .” United States v. Eckhardt , 466 F.3d 938, 947 (11th Cir. 2006). As a threshold matter, we review the alleged statements at issue in this case for plain error because Thomas did not object to them at trial. See Mueller , 74 F.3d at 1157. Thomas focuses on the fact that the government called him an “idiot” during its closing remarks. But the context of th e “idiot” remark in question undercuts the force of his argument . During his closing argument, Thomas ’s lawyer argued that Thomas was innocent because the government did no t find material on his phone showing him holding guns and drugs

. In response, the government explained it could

not uncover such evidence because Thomas was “ not a complete idiot. ” Put another way, the government was merely pointing out that a clever ind ividual might take some steps to conceal criminal activity. T he district court reasonably determined this statement was fairly responding to the defense counsel’s arguments. Reeves , 742 F.3d at 505. And, even if the remark was somehow “improper,” w e fin d no reason to conclude that “ but for ” the government ’s “idiot” comment , “the outcome of the trial would have been different. ” Eckhardt , 466 F.3d at 947.

III. Finally, Thomas argues the evidence at trial was insufficient to support his conviction for possessing a firearm in furtherance of a drug distribution conspiracy. When a defendant challenges the sufficiency of the evidence supporting a conviction and is d enied a Rule 29 motion for judg ment of acquittal, we review the district USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 5 of 76 Opinion of the Court 22

- 12930

court’s determination de novo. United States v. Gamory , 635 F.3d 480, 497 (11th Cir. 2011). While doing so, we view the evidence in the light most favorable to the government and ma k e all reasonable inferences and credibility choices in favor of the jury’s verdict. Id. Like many criminal cases before it
, a key source of evidence in this case is witness testimony. We will not upset a jury’s decision to credit a witness’s testimony unless the testimony is “ incredible as a matter of law ”

. United States v. Isaacson , 752 F.3d 1291, 1304 (11th Cir. 2014). For testimony to be incredible as a matter of law, it must concern “ facts that the witness physically could not have possibly observed ” or events impossible “ under the laws of nature.” Id. (quotation marks omitted). Because Thomas moved for judgment of acquittal at trial, we review his sufficiency of the evidence chall enge de novo

. See Gamory , 635 F.3d at 497

. Under that standard, we conclude the government presented sufficient evidence for the jury to convictThomas for possessing a firearm in furtherance of a drug distribution conspiracy. For instance, o ne witness testified that Thomas routinely carried a pis tol while deliver ing drugs

. Another said he saw Thomas deliver and sell drugs and that Thomas routinely carried a firearm in his pocket

. Notably
, t he jury found both witnesses’ testimonies credible

. Given t he substance of the testimony, we determine tha t the defendant’s actions described by the witnesses were physically observable to them , and none of the USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 6 of 722

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conduct detailed by the testimony is impossible under the laws of

nature. Isaacson , 752 F.3d at 1304.
* * *
To sum up , Thomas has failed to show ( 1) that the district court’s jury instructions on the aiding

- and

- abetting charge violated his due process rights, ( 2 ) that the government’s “idiot” remark prejudiced his right to a fair trial, or ( 3) that the witness testimony presented in this case is insufficient to support his conviction.
AFFIRMED. USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 7 of 7